IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141208

Docket: M106113

Registry:
New Westminster

Between:

Blake Edward
Hurdle

Plaintiff

And

Kathleen Jean
Lagore also known as

Kathleen Lagore
and Gordon George Lagore

Defendants

Before:
The Honourable Mr. Justice Crawford

Reasons for Judgment

Introduction

[1]            
On the evening of August 31, 2006 at approximately 8:00 p.m., the
plaintiff Mr. Hurdle was driving his motorcycle east on Hastings Street, a
primary east-west thoroughfare in the City of Vancouver

[2]            
Coming in the opposite direction and about to make a left turn south on
to Nanaimo Street was the defendant Mrs. Lagore.

[3]            
A collision occurred near the middle of the intersection as Mr. Hurdle
went through the intersection and Mrs. Lagore started to make her left
turn, causing Mr. Hurdle’s pillion passenger to fly over Mrs. Lagore’s
car and onto the pavement, and Mr. Hurdle and his motorcycle to ricochet and
slide to the southeast corner of the intersection.

[4]            
Six persons including the parties gave evidence. All were truthful, and
their evidence reflects six different viewpoints, which as counsel observed,
were irreconcilable.

[5]            
The governing legislation is found in ss. 174, 128 and 129 of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318. Under s. 174, the left
turning driver owes the duty of care to give way to all traffic that might
constitute an immediate hazard, while ss. 128 and 129 direct a motor vehicle
stop when a yellow or red light traffic signal is in operation. If a yellow
light shows, the oncoming driver is obliged to stop if he can do so in safety.

[6]            
Motor vehicle accidents usually occur within the space of one or two
seconds, and as can be seen by the August 2006 accident date, the memory of the
witnesses at trial years later can be affected by the passage of time. On the
other hand, for some, the images are so strong that it seems their recollection
is indelible. However, the human mind is subject to frailties which does
account for some of the versions of the accident as put forward by the
witnesses.

[7]            
For consistency I have used the color yellow though many of the
witnesses spoke of amber lights.

[8]            
I will summarize the evidence of the witnesses, cite some recent
applicable comments of the Court of Appeal and my colleague Adair J.,
discuss the relevant points made in evidence, and give my conclusion.

Blake Hurdle

[9]            
Mr. Hurdle is now age 29 and a longshoreman. He gave his evidence
clearly and was a good witness.

[10]        
He sustained injuries to his left knee and ligaments, and had multiple
bruises and cuts.

[11]        
He was driving a 600 CC Suzuki motorcycle and had taken a two-week motorcycle
operation course in summer 2005 in which there was theory and practical
instruction which impressed on him the situations of vulnerability. He noted
there was an emphasis from the instructors on care with left turn situations
with a focus on being ready and visible. The instructors encouraged driving on
the left-hand side of a lane at intersections so as to be more visible to
oncoming traffic, as driving in the right-hand side of a lane may cause one to
blend in with the traffic.

[12]        
He regularly drove up and down Hastings and was in good health having
played a “high level of baseball”.

[13]        
On the date of the accident, he was wearing a full-faced helmet together
with a thick canvas jacket, thick jeans and leather motorcycle gloves.

[14]        
He was on a date with his girlfriend, W. who was also wearing a helmet,
hoodie and jeans. He said they had often ridden together up to four days a week
as they both enjoyed the motorcycle transport.

[15]        
He said that changed the way he would drive when W. was a passenger, as
he loved W. and would be more careful with her. As well the additional weight
made the handling of a motorcycle different, so he would not be as aggressive.

[16]        
They had gone to the Vancouver Art Gallery that afternoon and were then
driving to Mt. Seymour. He said it was a great sunny day. He drove from the art
gallery and then at some stage turned onto Hastings with the sun at his back
which he described as very bright. The roads were dry and it was post rush hour,
but they were still congested with a steady and slow traffic flow which he put
at 40-50 km/h. There were no distractions to his driving nor were they in a
hurry.

[17]        
His recollection was he was on Hastings some five to seven blocks before
Nanaimo and he hit two or three green lights in a row, staying on the left-hand
side of the left lane and not changing lanes. He recalled being able to see the
traffic light approximately three blocks before Nanaimo and the colour was
green throughout.

[18]        
The last time he recalled looking at the stop light was as he entered “a
point of no return” i.e. he could not stop safely before the north/south
crosswalk on the west side of the intersection.

[19]        
He said from two to three blocks away he could see a white car waiting
in the intersection at Nanaimo preparing to turn left, and that he proceeded on
through the intersection assuming that the driver of the white car had seen
him. He did not recall any of the centre lane traffic stopping beside him.

[20]        
He believed the position of the white car was near the middle of the
intersection making reference to a Google picture that became marked as Exhibit
1. He indicated an area somewhat in front of the green truck pictured in Exhibit
1.

[21]        
When asked if there was an effect of carrying the passenger on what he
considered “a point of no return”, he said the weight would require a longer
stop for the motorcycle and therefore it would be several feet farther back than
if he was the sole passenger.

[22]        
He recalled traffic being in front of him, and that he was a safe
distance back, perhaps twenty feet. He said the traffic did not affect his view
of the Honda as he approached the intersection.

[23]        
He made no speed change as he went with the flow of the traffic towards
the intersection.

[24]        
With respect to the white car, it appeared to be facing quite straight;
i.e. east/west, with its left indicator on.

[25]        
He said as he went into the middle of the intersection he believed he
was still on the green light and that the car had still been stationary at the
“point of no return”. Then as he entered the cross-walk, he heard the car
“take-off and the tires squeal” as if it had got “off the line in a brisk
fashion”. He could see the car had moved quite fast and that it was on a
collision course. The car appeared to turn at the same time as he was going
through the crosswalk.

[26]        
He said he had no time to evade, that there was about a split second and
he tried to move to the middle of the lane without success. The time from the
car movement to impact was not even a second.

[27]        
He said the impact was under his left leg, with the car’s front-left
bumper hitting his left calf at approximately the front one-third of the motorcycle.
It kicked the motorcycle to the right and out of control; he  bounced off the
car bumper and lost the steering. The motorcycle fell down with him on its left
side and then he and the bike slid off to the southeast corner of Nanaimo and
Hastings with the bike sliding off him at the end of the slide.

[28]        
He said he came to rest close to the sidewalk and some 10-15 feet past
the crosswalk on the east side of the north/south pedestrian crosswalk. He said
he reached behind him and could not feel anything, and then he tried to stand
up and he could not and fell down.

[29]        
Reference was made to pictures of the motorcycle and he pointed out the
damage on the left-side of the motorcycle. (See Exhibit 2, pictures 8, 9, 10,
16 and 17.)

[30]        
Emergency personnel were on the scene quickly and he saw paramedics. He
did not recall seeing any police officers until he was in the hospital “being
stitched up”. He said a number of pedestrians came to his assistance
immediately, one man taking his motorcycle gloves off and trying to calm him
down.

[31]        
He was shown pictures of a white Honda motor vehicle and he agreed that
appeared to be the car that struck his motorcycle. That picture became Exhibit
3, showing damage to the front-left corner on the motor vehicle.

[32]        
The motorcycle was deemed a write-off and the ICBC estimate was marked Exhibit
4.

Cross-examination of Mr. Hurdle

[33]        
Mr. Hurdle agreed the Suzuki sports model handles better than a
Harley Davidson and it requires the rider to lean forward when sitting in the
driver’s seat. The 600 CC engine is the smallest they make and it can go up to
1900 CCs. It is more maneuverable than a Harley Davidson which is a heavier
vehicle.

[34]        
Mr. Hurdle agreed he fell to his left and the bike then left him,
and he agreed there was damage to its right side. He said he initially slid on
his left side and came to rest some 10-15 feet from the eastern crosswalk. He
was in shock and did not realize he was injured until he tried to get up and
fell down. He said where he stopped was some five to ten feet from the bike,
which was further east of him. He did not measure those distances and agreed
they were his estimates.

[35]        
He agreed in his statement of September 7, 2006, he had indicated the
bike travelled about 15 feet past the intersection.

[36]        
He confirmed attending at the art gallery and then intending to go to
Mt. Seymour. He agreed that he got onto Hastings as quickly as he could from
the art gallery, that many of the intersections were light-controlled, and that
he counted three green lights while on Hastings.

[37]        
He agreed there was a motor vehicle in front of him, perhaps some 20
feet or five car lengths, and there were vehicles behind him some five car
lengths. They were at a comfortable distance but he was not tailgated or
threatened. He said there were motor vehicles in the middle lane but he had no
specific recollection. When asked if he was aware of the vehicles, he said he
was not certain, he just knew that it was just congested and a steady flow. He
did not recall seeing a minivan in the right lane.

[38]        
He agreed he was going 40-50 km/h and disagreed he had been going 60 km/h.
Given the post rush-hour traffic he would not be over the speed limit.

[39]        
He agreed he saw the light at Hastings and Nanaimo from two to three
blocks west of the intersection, and that he could see three green lights ahead
of him. He agreed W. was wearing a full helmet and had her arms around his
waist, and that he was upright as he ordinarily would be on the motorcycle.

[40]        
He agreed he could see the oncoming car stopped in the intersection some
two or three blocks away, that he could see the control lights and the car at
much the same time, and the car was signalling a left turn.

[41]        
He said the light did not change and that as he entered the western
crosswalk of the intersection the light was still green. He agreed he could have
stopped but that the light was green. He agreed he did not look at the light
after he passed the “point of no return”, just before the crosswalk.

[42]        
When asked how far west of the crosswalk, he indicated with a passenger
that the “point of no return” would be some 10-15 feet west of the crosswalk.

[43]        
He agreed there were vehicles ahead of him and beside him but he could not
say what kind of motor vehicle.

[44]        
He said when the car ahead of him entered the intersection, he was some
ten feet from the crosswalk and that he never saw a yellow light.

[45]        
When asked if he saw a minivan ahead of him in the right-hand lane slow
and stop, he said that he did not. He said that his focus at the point of no
return and after was on the turning car as that was the danger position he had
been taught to watch for. He could not say whether or not there was a minivan
in the right lane or whether it slowed and stopped ahead of him. He did not
deny that the van might have been there and stopped but he did not have any
recollection of it.

[46]        
He agreed that on the examination for discovery on November 3, 2008, he
stated the light facing him was green from 20 feet before the intersection and
he did not see a change before impact with the car.

[47]        
Mr. Hurdle was asked to estimate the car’s position on Exhibit 1
where a Google picture shows a truck going west on Hastings in the intersection
at Hastings and Nanaimo. He said possibly the white car was a car length ahead of
the pictured green truck, but it was hard to say how far from the green truck.

[48]        
He was aware that Nanaimo had three lanes each way like Hastings and he believed
the front of the car had passed the stop line on the east side but not passed
half way through the intersection. He disagreed that he was facing a yellow
light before he reached the point of no return. It was put to him that he
passed the stopped minivan facing a yellow light and he could have stopped on
the yellow light. He asserted he had the green light. He further disagreed he accelerated
into the intersection.

Mr. Stewart Dean

[49]        
Mr. Dean is a carpenter with over 30 years’ experience and has run
his own company for nine years.

[50]        
On the evening of August 31, 2006 he was travelling east towards Port
Moody on Hastings Street having finished his days’ work in Kitsilano. He was
driving a three-quarter ton cargo van and was alone.

[51]        
He was on Hastings some six to eight blocks prior to the intersection
where the accident occurred.

[52]        
He described it as a beautiful evening with the light good but close to
sundown. It still warm and the road dry. He described the traffic as light and
said he had followed the motorcycle for three or four blocks. He said that they
had the lanes to themselves.

[53]        
He said their speed was much the same, perhaps 50-60 km/h, and he kept
to the left lane as did the motorcycle. At no time did he see the motorcycle
change lanes or swerve at any time prior to the accident.

[54]        
As they approached the Nanaimo intersection, he felt the two cars on his
right were turning and he passed them. The light was green for the motorcycle
and he intended to follow it into the intersection, but then the yellow light
came on and he then slowed to a stop. He said the white car coming towards them
started to move and that caused him to stop. He said he had the green light,
the motorcycle went through perhaps two seconds before his vehicle, and the
light then changed to yellow. He felt he could have crossed before the red. He
saw the white car move as the motorcycle crossed the stop line, then the white
car “sort of lurched”.

[55]        
He placed the white car a car length over the east stop line, facing
straight west, stopped and waiting to turn. When it lurched forward, he said it
went slightly sideways starting the left turn, and as the motorcycle was passing
the car, it drove forward into the motorcycle. When asked where the contact
occurred he said he initially thought the car had turned in front of the motorcycle,
but he now understands that is not the case. He maintains it was not clear, it
was not expected and it happened very fast.

[56]        
He said the pillion passenger went up over the white car and out of
sight, while the motorcycle went down to the ground. The rider stayed on the
bike across the intersection and came off near the curb. The traffic light went
red and then he saw the passenger across the road.

[57]        
As to the white car, it stopped on impact and nothing moved on the light
change. Then on the next green light, the white car moved onto Nanaimo. He
waited for another light to change and on the second one, he went and parked.

[58]        
He said a lot of police arrived from nowhere, talking on radios and
working through a crowd of some 20 pedestrians. He had not seen any pedestrian
traffic in the intersection.

[59]        
He went to assist the pillion passenger as people were to attending the motorcycle
driver. He spoke to the girl and it was evident she was in pain. He told her to
stay down on the ground. He said the driver was some six to eight feet away and
not very responsive.

[60]        
He spoke to a police officer who took his statement. He said the driver
of the Honda car stayed put and he did not talk to her. He said the two people
on the motorcycle went off in an ambulance.

Cross-Examination

[61]        
He said the motorcycle was on its side. He could not tell if the engine
was still running or if there were any fluids but it was close to the rider at
rest.

[62]        
He said he passed the motorcycle before he parked and he put the motorcycle
some six to eight feet past the crosswalk by the coffee shop on the corner. He
agreed he was behind the motorcycle and followed it within three blocks of
making his turn onto Hastings. He agreed he was initially going faster than the
motorcycle and then followed it for some five blocks, going through the green
traffic lights all the way. He agreed there was very little traffic. He put the
distance between him and the motorcycle at 30-40 feet, possibly more but at a
safe distance and a good speed.

[63]        
He agreed he had said previously they were some 60 feet apart. He agreed
Exhibit 5 shows Garden Drive as the intersection prior to Nanaimo but he did
not remember that particular intersection.

[64]        
He agreed he said the motorcycle entered the intersection on the green
light but that his police statement said the motorcycle entered the
intersection as the light was changing to yellow. He believed it was green and
changed when the motorcycle entered the intersection. He agreed he saw motor
vehicles on his right that either slowed, turned or parked but he did not
remember a minivan to his right. His recollection was that there were two motor
vehicles in the curb lane and they were turning right.

[65]        
When asked if there was a motor vehicle ahead of the motorcycle as it
entered the intersection, he said “no”. When asked if the motorcycle passed a
motor vehicle he said “no, they were passed prior to the intersection”, that
there were two motor vehicles to his right and he believed he had passed them
before the intersection within five or six stores of the intersection.

[66]        
When asked if the motorcycle passed a stopped motor vehicle as it
entered the intersection, he said he did not believe so.

W.

[67]        
Ms. W. is now 28 and a store manager. She knew the plaintiff having
dated him for some five years but had not seen him for approximately four
years.

[68]        
At the time of the accident in 2006, she was the pillion passenger on Mr. Hurdle’s
motorcycle. She had ridden with him many times and said he was extremely safe,
cautious, obeyed speed limits, was not cocky and she felt very safe when she
was with him.

[69]        
That evening they had gone to the Vancouver Art Gallery and were
planning to have dinner in Coquitlam and then go to Mr. Hurdle’s cabin on
Mt. Seymour. She recalled leaving the art gallery and going east on Hastings
with the traffic flow. She recalled they were following a black SUV and the
light was still green as she viewed it over his right shoulder, and then the
next thing she knew was the accident impact from the left-hand side which she
did not anticipate.

[70]        
She left the pillion and could see the light was still green. She flew
over the car into oncoming traffic, hit the ground and rolled but could not get
up. A gentleman picked her up and carried her over beside Mr. Hurdle. He
was screaming for her and they asked each other how the other was. She thought Mr. Hurdle
was concerned about a broken leg. She sat next to him and held his hand until
the police showed up.

[71]        
When asked if it was clear in her memory she said it was like yesterday.

[72]        
She said she was wearing jeans, sneakers, a tank-top, a hoodie and a
full head covering helmet. She said visibility was clear at all times.

[73]        
When asked why her memory was so acute, she said that her sister had
been killed in a car accident at age 10 and that she had been a passenger in
two intersection accidents, so she had a habit of watching the lights. She said
she was watching the light and it was safe to go through as it was green. She
said that while in the air after the car impact, she heard her cell phone ringing
in her knapsack (a Marvyn Gaye song) and it later turned out her mother had
called her at that precise moment.

[74]        
She described the traffic flow as heavy; steady as if just after rush
hour. She recalled being extremely scared when she left the motorcycle. She said
that she did not see the oncoming motor vehicle at any time.

[75]        
In cross-examination, she agreed there were many blocks between the turn
onto Hastings and the intersection at Nanaimo. She believed they had stopped
for a red light at some point but she was not sure of which light they stopped
at as she was not familiar with the crossroads. She was not sure whether they
had stopped close to Nanaimo or further back nor did she remember if they were
first in line at that stop light.

[76]        
She said she had been wearing a full-faced helmet with a clear visor,
the same as Mr. Hurdle’s. When asked how she positioned herself on the
back of the motorcycle, she said she held his waist and put her head on his
right shoulder and as a result her vision would be blocked to the left by his
head. She agreed his posture would be somewhat hunched forward as she would be,
but she could not see over him as their heads were at the same level.

[77]        
She saw the green light from the previous intersection and said that it
turned green as they went through the previous intersection. She said she
continued to see the green light.

[78]        
When asked about the traffic on their right, she said there may have
been some parked or turning traffic as there were two lanes, a through lane and
a parking lane. She said that there were cars in both the curb and centre lane
and she thought it was possible the cars in the centre lane may have turned
right. She did not recall seeing cars in the right lane ahead of them.

[79]        
She reiterated she saw the light go green a block back from the
intersection, that she continued to watch the light and as they entered the
intersection, the light was green at the time of impact. She said the light was
still green while she was in the air. She said she did not look at the light
after she hit the ground. She said she did not see a yellow light at any stage
until after the accident.

Craig Luker, professional engineer

[80]        
Mr. Luker is a professional engineer with 20 years’ experience in
accident reconstruction, which includes more than 100 motorcycle accidents. He
noted in talking of his qualifications, people often simply do not see
motorcycles due to their lack of width. Similarly pedestrians often are not
seen by car drivers even in good lighting.

[81]        
His assessment of the evidence was that the defendants’ Honda vehicle
had started its left-hand turn and was not stationary at impact. Much of that
could be deduced from the type of damage to the front corner of the Honda
vehicle and the damage on the motorcycle, which starts just behind the front
wheel.

[82]        
He said it was difficult to calculate speeds as in effect, it was a
glancing blow on the motorcycle and the calculation was largely based on the
distance the motorcycle slid on the asphalt from the point of impact to its
place of rest. His diagram shows the Honda car and the motorcycle colliding at a
21 degree angle of impact.

[83]        
The evidence from the City of Vancouver showed there was no protected
left turn; i.e. both drivers faced the same colour light which would be green
for a substantial time, then a 3.5 second yellow, and a 1.5 second red.

[84]        
Mr. Luker provided an opinion primarily focused on comparing the
statements of the drivers Mr. Hurdle and Mrs. Lagore against his findings on
evidence derived from the motor vehicle scene.

[85]        
He did not see the vehicles but was provided photos of Mrs. Lagore’s
Honda motor vehicle and Mr. Hurdle’s Suzuki motorcycle. The damage to the
leading edge of the motor vehicle was confined to the front corner and he
concluded the car was angled at 21 degrees from straight ahead (west). The
damage was likely due to the Honda having started its turn and possibly to the
Suzuki having swerved right. He was unable to pinpoint the stopped and waiting
position of Mrs. Lagore’s Honda motor vehicle. He put forward a range of
impact locations depending on whether Mrs. Lagore was stopped, straddling
the pedestrian crossing or had advanced forward into the intersection before
she started to respond to the light changing to yellow.

[86]        
He performed calculations based on the sliding distance of the motorcycle
after impact and concluded the Suzuki left impact at a speed of 30.0-46.5 km/h.
Given it was a glancing blow, there was relatively little slowing at the point
of impact.

[87]        
Using published observations for left-turning drivers, he calculated the
Honda would have taken 2.68-3.06 seconds to reach impact at a speed of
13.9-17.3 km/h from the starting positions he pictured in his report.

[88]        
He stated the Suzuki would have taken 1.27-2.05 seconds to travel from
the westerly stop line to the place of impact.

[89]        
On instructions, he used an assumption that Mrs. Lagore would start
her left turn in response to the westbound traffic signal turning yellow. Using
a perception response time of 1.54 seconds before she started accelerating and
the additional 2.68-3.06 seconds of travel-to-impact distance resulted in a total
of 4.22-4.60 seconds from the traffic signal turning yellow to the point of
impact.

[90]        
As to the Suzuki motorcycle, he opined it would have entered the
intersection 2.17-3.33 seconds after the east-westbound traffic signal turned
yellow. The City of Vancouver traffic signal timing data showed the east-west
bound yellow signal was 3.5 seconds and therefore he concluded the Suzuki motorcycle
would have entered the intersection when the eastbound traffic signal was
yellow.

Cross-Examination

[91]        
Mr. Luker agreed that there were no assumptions of fact provided to
him in the letter of instruction but there was telephone discussion with
counsel. He kept his assumptions short and limited to a certain degree. Other
than the assumption provided that Mrs. Lagore responded to seeing the
light changing to yellow, his other assumptions were predicated on his analysis
of the information from his investigation and the documents and photos
provided.

[92]        
He agreed his calculation of Mrs. Lagore’s response time was
premised on Mrs. Lagore responding to the light turning yellow, at a 1.54
second perception-response time, and then moving the car forward to impact over
a time period of 2.68 to 3. 68 seconds, in total 4.22 to 4.60 seconds. He
agreed that was not what Mrs. Lagore had said in her statement.

[93]        
He agreed with most of the report as he had written and argued the
calculations of the motorcycle speed based on its skidding distance after
impact were “robust”. He used a wide range of drag factors and then illustrated
them.

[94]        
He agreed there was a lack of information, making some of the speed
calculations uncertain other than the assumption of the location of the
motorcycle after impact. He also did not have a post-impact location for the
Honda motor vehicle, which made speed calculations more difficult. He agreed
that he had used drag factors that were not necessarily indicative of the
motorcycle falling to its right but that did not make a large difference to his
calculations. As well, he agreed he assumed a glancing or deflection of the
motorcycle from impact with corresponding little effect on the motorcycle speed
estimate of 30 to 46 km/h. He did agree that the pre-impact speed of the
motorcycle would have been slightly more than the 40 or 50 km/h estimated.

[95]        
The time for the motorcycle to go from stop line to impact was 1.27 to
2.05 seconds, depending on its speed (46.5 – 30 km/h).

[96]        
When it was suggested that Mrs. Lagore did not begin to turn until
she saw the oncoming motor vehicles slowing, he noted the times could be
difficult because she might then not wait for the end of the yellow. She might
rather then start to accelerate her motor vehicle on seeing the cars slowing.

[97]        
He agreed on his calculations the motorcycle could be some 2.17 to 3.33
seconds from the intersection when the light turned yellow depending if the
motorcycle was going 50 or 40 km/h.

[98]        
If another second was added to Mrs. Lagore’s response time, then
the motorcycle could be some 44.1 meters to 48.1 meters from the intersection
when the light turned yellow, in which case the motorcycle would enter on a
late yellow at 50 km/h or on the red light at 40 km/h.

Kathleen Jean Lagore

[99]        
Mrs. Lagore is 63 years of age and has lived close to the
intersection of East Hastings and Nanaimo for 15 years. She is a teacher by
profession. On August 31, 2006 she had been visiting her son in Burnaby. She
was headed west in her 1990 Honda Accord. She was heading west on Hastings and
intending to turn left on Nanaimo Street.

[100]     She said
it was approximately 8:00 p.m., the light was fading, it was just before sunset
but dusky. She was in the left lane to make her turn.

[101]     She has 33
years driving experience.

[102]     She
approached the intersection. The light was green and had been green for
approximately one block. She was first in line. There was no left turn lane.
She did not remember if she followed any cars into the intersection. She entered
the intersection and stopped approximately mid-intersection as she needed to
turn left passed a median that divides Nanaimo Street, but her car still faced
west. She assumed there was traffic behind her.

[103]     She never
saw the oncoming motorcycle.

[104]     She did
not remember if any cars passed her on the right, but did recall cars passing
her going eastbound. She saw the traffic light turn yellow and the eastbound
cars slowing. She looked left to check for pedestrians crossing Nanaimo Street,
and looked back again to the oncoming traffic which was stopped. By then she
had taken her foot off the brake and her car was rolling.

[105]     She then
heard a high-pitch whining noise and “swung” back to see a motorcycle “hurtling”
at her. She was shocked as she had seen the oncoming cars stop and wondered
where the motorcycle came from.

[106]     By “hurtling”
she explained she meant the motorcycle was going extremely fast. She saw on the
left-hand side of her car only a driver of the motorcycle and no passenger.

[107]     She said
she saw the motorcycle “a second before impact” as she heard the noise and felt
it was fairly close, perhaps some 15 feet away. She did not press the
accelerator before the impact. The impact occurred on her motor vehicle’s left
front corner. She described that as more of a feeling that the motorcycle was
crashing into the left hand side of her car.

[108]     She then
saw the motorcycle rider and the falling motorcycle sliding on the road to her
left and towards the corner store.

[109]     Mrs. Lagore
said she then panicked on seeing the north/south light change and felt that she
had to get out of the intersection area. She lurched through the turn onto
Nanaimo and pulled over in a safe place about half-way down the block. She
heard sirens coming and was concerned about the motorcycle rider, but a lady
came to her window and asked if she was okay. Mrs. Lagore said she was
traumatized but had no pain.

[110]     Then
police officers came and took her driving particulars. They advised that the
motorcyclist was breathing and conscious. She declined an ambulance or going to
a hospital. She left her car and a police officer drove her home.

Cross-Examination

[111]     In
cross-examination, she said she heard the motorcycle when she was looking at
the pedestrian crosswalk and then she looked back again for the yellow light
and saw the cars stop. She conceded her car might have been rolling as she has
taken her foot off the brake but denied she had put her foot on the accelerator.
She said she was getting ready to turn and was moving “slightly”.

[112]     Mrs. Lagore
said after the light turned yellow and the oncoming traffic stopped, she then
looked left to the pedestrian crosswalk. She said that two cars at the front of
the oncoming traffic had stopped. She could not remember if any oncoming
traffic made a right turn onto Nanaimo Street.

[113]     As to
failing to see the motorcycle, she assumed it came from between the oncoming
cars as she did not see it.

[114]     She had no
recollection of turning her car towards Nanaimo.

[115]     She saw
the motorcycle as it skidded down the side of her motor vehicle, but she could
not say how far the motorcycle was against her vehicle. She said she had not
seen the pictures of her motor vehicle.

[116]     In her
examination for discovery, Mrs. Lagore asserted there were blue marks all
the way down the left hand side of her car. At trial she agreed the exhibit
photo of her car only shows blue marks above the front left fender of her car. She
then asserted she had seen some blue marks when she left it at the time of
accident.

[117]     As to “hurtling”
she said it seemed like the motorcycle was flying at her. She could not say how
much time that was in seconds, more than one or two seconds, and reiterated she
had not put her foot on the car’s accelerator. She agreed the motorcyclist
drove into her car. Asked if her car was rolling forward for three seconds, she
said she could not judge the time nor would she agree that from the time she
took her foot off the brake to impact was three seconds. Asked to define “hurtling”
she said “coming very fast, moving quickly, not leisurely”.

[118]     She agreed
Nanaimo Street had four lanes northbound and that included a left turn lane,
and not three lanes as she thought.

Dr. Edward Jones

[119]     Dr. Jones
is aged 60 and has been a doctor in anatomical pathology at Vancouver General
Hospital for 28 years. On the date of the accident he was driving east on
Hastings. He described it as a warm summer evening. He was driving a Toyota
minivan.

[120]     He said he
drove in the middle of the three lanes going east for several blocks,
describing the traffic as a “slow go” and congested. He described his speed up
to the Nanaimo intersection as slow, below the speed limit. He slowed and
stopped when he saw the yellow light and was first in line at the stop line in
the middle lane. He could see an oncoming car stopped in the intersection
waiting to make a left hand turn and “slightly angled” to make its turn.

[121]     He heard
the sound of the motorcycle as it appeared on his left and entered the
intersection as he stopped. The oncoming car started to move slowly and the
motorcycle “zoomed in” and hit the left front of the car. By the time of impact
he said he was totally stopped. He said he was stopped when the Honda car
started to make its left hand turn. He was aware of the motorcycle when he
initially saw the light turn yellow.

[122]     He then
said he was stopped when the motorcyclist entered the intersection, a second after
he stopped. He said the light colour was yellow when the motorcycle entered the
intersection but could not say what colour the light was when the collision
occurred. He said witnessing the collision was “unbelievable”, “quiet and then bang”.
The motorcycle ricocheted on its side through the intersection to the south
east corner. He saw the driver get up, stagger a few steps, and then collapse.

[123]     He said he
was conflicted and wanted to help but at the same time get on his way home. He
parked nearby. By the time he got to the scene, paramedics were in action. He
found the motorcyclist’s pulse, and once satisfied he was alive, stepped back
and the medics took over. He later gave a statement to the police.

Cross-Examination

[124]     In
cross-examination, Dr. Jones said he did not remember if there was a car
stopped to his left at the stop line, nor had he noticed the motorcyclist
before it passed him at the intersection.

Sandra Mosterey

[125]     Ms. Mosterey
is 57 and an employment counselor. She was driving behind Mrs. Lagore
westbound on Hastings and also intended to turn left at Nanaimo.

[126]     She
described the traffic as busy. She followed the Honda as it entered the
intersection. She placed the Honda “not far past the westbound stop line”.

[127]     Ms. Mosterey
said she could see the oncoming traffic but could not say how many vehicles
came through while the light was green. She said the light went from green to
yellow, the oncoming traffic in both lanes slowed and stopped, and then the
Honda moved just as the light turned red.

[128]     She said
while at the light she became aware of a movement between the cars that were
coming to a stop. She said that the light was red when the motorcycle entered
the intersection. She said the Honda was “finishing its turn” when the
motorcycle hit the car on its front.

[129]     The
motorcycle and the rider then went sliding down the road while the car stopped,
then the Honda left the intersection. Ms. Mosterey followed the Honda and
stopped right behind it. She said people were going to assist the motorcyclist
and she went to assist the car driver and reassure Mrs. Lagore before the
police came. Ms. Mosterey spoke to the police and then went on to see her
sisters.

Cross-Examination

[130]     Ms. Mosterey
said she saw the motorcyclist before it entered the intersection, that it
weaved between the oncoming car lanes and the traffic was fairly heavy. In her
view both oncoming car lanes had stopped before the accident and they all
stopped in unison. She said she saw the motorcyclist three or four cars back as
the light turned yellow, and noted generally that motorcycles “jockey” into
position to get to the front of the line for the green light.

[131]     She said
she did not actually see the motorcycle but the head of a person on a
motorcycle, and she only heard the motorcycle as the light turned red as it
“flew out of the cars” extremely fast.

[132]     Ms. Mosterey
could not say which oncoming lane the motorcycle came from and reiterated it
appeared to be moving in and out of the cars in the oncoming traffic lanes,
changing lanes some four or five times and not driving in a straight line. At
that stage she was not concerned as she thought the motorcyclist was just
wanting to get first in line at the stop line.

[133]     She could
not say if there were any pedestrians crossing Nanaimo Street. Ms. Mosterey
could not be exact about the time lapse from when she first saw the motorcycle
until the impact, but it was less than one or two minutes and very fast. She
put the point of impact near mid-intersection and said that the Honda was then
pointing left some 30 to 35 degrees.

[134]     As to her
car, she said she was at the east pedestrian crosswalk and she had not decided
if she would turn or not. She had assumed the oncoming motorcyclist was
stopping. She said she waited for several light changes before making her left
hand turn and stopping behind Mrs. Lagore’s car. Asked if the setting sun
was a factor, she said it was possible, she had sunglasses on and the sun visor
down.

Examination for Discovery

[135]     The
plaintiff read in parts of the defendant’s examination for discovery taken
November 3, 2008. Mrs. Lagore indicated she entered the intersection, gone
to approximately the centre and waited for the light to go from green to yellow
for approximately 45 seconds. She said that she saw the oncoming traffic in
both lanes come to a stop but she did not see the motorcycle at all until the
collision; that the oncoming traffic came to a stop when the light turned
yellow; that she did not know if the light was yellow or red at the time of the
collision; that after the collision she saw the bike rider sliding with his
bike towards the sidewalk; and that she never saw the pillion passenger.

Argument

[136]     The
parties’ arguments are diametrically opposed and dependent on the divergent
evidence of the witnesses.

[137]     The
plaintiff says his position is corroborated by his pillion passenger and the
gentleman behind him, Mr. Stewart Dean. He argues he obeyed the traffic
signals and the rules of the road and was struck due to the negligence of the
defendant, Mrs. Lagore. Mrs. Lagore did concede she never saw the
motorcycle and therefore the plaintiff submits her negligence is established as
the direct cause of the collision.

[138]     The
defendant in turn denied liability for the accident and said it was solely
caused by the plaintiff’s negligence.

[139]     The
defendant relies on Dr. Jones’ evidence as being the best evidence. Dr. Jones
was able stop safely for the yellow light, Mrs. Lagore commenced her left
turn and then he saw a motorcycle enter the intersection and strike the Honda
motor vehicle. From that evidence, the plaintiff is said to have entered to the
intersection on a “stale” yellow or red light and therefore was solely liable
for the accident.

Law

[140]     The
plaintiff relied on the cases where a left turning vehicle is obliged to give
way to oncoming traffic.

[141]    
This is summarized by Wedge J. in O’Ruairc et al v. Pelletier et al,
2002 BCSC 601 at paras. 27 – 31:

[27]      A
left turning vehicle at an intersection must yield to on-coming traffic that is
close enough to constitute a hazard. Section 174 of the Motor Vehicle Act,
R.S.B.C. 1996, c. 318, is the governing provision. It reads as follows:

When a vehicle is
in an intersection and its driver intends to turn left, the driver must yield
the right of way to traffic approaching from the opposite direction that is in
the intersection or so close as to constitute an immediate hazard, but having
yielded and given a signal as required by sections 171 and 172, the driver may
turn the vehicle to the left, and traffic approaching the intersection from the
opposite direction must yield the right of way to the vehicle making the left
turn.

[28]      The
driver attempting to make the left turn is commonly referred to as the "servient
driver" and the on-coming driver is referred to as the "dominant
driver". The dominant driver is entitled to assume that a servient driver
will yield the right of way and the onus of proving any negligence of the
dominant driver rests with the servient driver. Any doubt must be resolved in
favour of the dominant driver.

[29]      Our
Court of Appeal, in Pacheco (Guardian ad litem of) v. Robinson, (1993)
75 B.C.L.R. (2d) 273 stated this principle at para. 18 of the decision:

… when a driver
in a servient position disregards his statutory duty to yield the right of way
and a collision results, then to fix any blame on the dominant driver, the
servient driver must establish that after the dominant driver became aware, or
by the exercise of reasonable care should have become aware, of the servient
driver’s own disregard of the law, the dominant driver had a sufficient
opportunity to avoid the accident of which a reasonably careful and skilful
driver would have availed himself. In such circumstance any doubt should be
resolved in favour of the dominant driver.

[30]      The
principle has been applied in numerous cases involving motorists attempting a
left turn. See:

Raie and Raie
v. Thorpe (1963), 43 W.W.R. 405 (B.C.C.A.);

Keen v. Stene (1964), 44 D.L.R. (2d) 350 (B.C.C.A.), and

Etter v. Trent, [1991] B.C.J. No. 237 (Q.L.) (C.A.)

[31]      A
vehicle becomes an immediate hazard when it is so close to the intersection
that a collision will occur unless there is some violent or sudden action of
avoidance on the part of the driver of the approaching car. Speed and distance
generally determine what constitutes an immediate hazard. See: Raie and Raie
v. Thorpe, supra; Keen v. Stene, supra.

[142]    
However, more nuanced decisions have been seen such as by McEwan J. in Tejani
et al v. Greenan et al, 2001 BCSC 803, as well as Kokkinis v. Hall
(1996), 19 B.C.L.R. (3d) 273 (C.A.); Henry v. Benett, 2011 BCSC 1254; Yamakami
v. Whittey, 2012 BCSC 57; Lee v. Tse, 2013 BCSC 1740.

[143]    
In a number of the latter decisions it is apparent the defendant went
through a red light and had adequate time to stop given the circumstances of
the case.

[144]    
An important principle is Tysoe J.A.’s comment in Raie and Raie v.
Thorpe (1963), 43 W.W.R. 405 (B.C.C.A.) at p. 413 – 414 that the
point in time to assess whether the through driver poses an immediate hazard is
the moment before the left turner commences to make the turn.

Discussion

[145]     The trial
took place almost eight years after the accident and it asked much of the
participants to have an accurate recollection other than their reported
comments at the time.

[146]     Mrs. Lagore
conceded she did not see the motorcycle until it was virtually upon her.

[147]     Mrs. Mostrey
stated the motorcyclist swerved through and passed three to five motor vehicles
and went through a red light to get to the impact. However, I accept Mr. Dean’s
and the plaintiff’s evidence that the plaintiff was at the front of the
oncoming lane of traffic.

[148]     It is
ironic that the plaintiff said his motorcycle instructors warned of the
difficulties car drivers do have seeing oncoming motorcyclists. Mr. Luker
testified that car drivers have difficulty seeing motorcyclists and
pedestrians.

[149]     Another
curiosity which never came up in the evidence would have been the fact that the
sun was setting to the west on Hastings Street that evening; yet no witness
made any reference to the difficulty that might be accorded to the westbound
traffic seeing into the setting sun. That might be some reason for the evidence
of the witnesses which is, as defence counsel put it, irreconcilable.

[150]     I do
accept Mrs. Lagore is a careful driver and had she seen the oncoming
motorcyclist, I am sure she would not have attempted to make her turn.

[151]     She said
she held her vehicle in a straight line pending a turn, but the evidence is
that she had started to make her turn and was some 20 degrees from a straight
line at the point of collision that would take her well into the oncoming lane
of traffic. That is confirmed by the damage to the very front corner of her
motor vehicle.

[152]     The great
difficulty in this case is the degree to which there is contributory negligence
on the part of Mr. Hurdle.

[153]     If I
accept the evidence of his former girlfriend W. and the gentleman coming behind
him, Mr. Dean, the light was likely just changing from green to yellow as
he entered the intersection.

[154]     However,
had he done so at his speed which was approximately the speed limit, it would
appear he would have passed through the intersection safely on the yellow. Dr. Jones
said his lane of traffic was going very slowly and he was able to come to a
stop and watch matters unfold in front of him.

[155]     The
intersection is said to be 80 feet wide. With the motorcyclist doing 50 km/h
(or 30 miles per hour) that equals 44 feet per second. The yellow light shines
for 3.5 seconds.

[156]     If the
motorcyclist had entered the intersection as the light turned yellow, within
two seconds the motorcyclist would have cleared the intersection. However, Dr. Jones
said he had been stopped approximately one second, and then the motorcyclist
passed him. If Mrs. Lagore had taken her foot off the brake of her vehicle
and was starting to roll into her left turn, then the motorcyclist entered the
intersection at a later stage of the yellow. Dr. Jones did not say the
light was red at the time of collision.

[157]     I accept
the evidence of both the plaintiff and defendant that they were driving as
carefully as they could in the circumstances, the plaintiff because he had his
girlfriend on the pillion and was acutely aware of his responsibility for her
safety as much as for his own, and the defendant because she has driven for
over 30 years and is patently a careful road user.

[158]     Unfortunately
she simply did not see the motorcycle which was there to be seen and had she
seen it, I do not doubt the accident would not have occurred.

[159]     However, I
am not satisfied Mr. Hurdle entered the light on a green or early yellow
but rather a somewhat “later yellow” which probably put him in that agonizing
position of whether to proceed or stop. He chose to proceed.

[160]     That in my
view incurs a modicum of fault, but the majority of it must fall on the failure
of Mrs. Lagore not to see Mr. Hurdle’s oncoming motorcycle. Mrs. Lagore
said she saw both lanes of oncoming traffic come to a stop, yet plainly Mr.
Hurdle’s motorcycle was in front of Mr. Dean’s vehicle and Mrs. Lagore
did not see him. It is at that time she attempted to turn.

Conclusion

[161]     In the
circumstances I apportion fault 80% to Mrs. Lagore and 20% to Mr. Hurdle.

[162]     As to
costs, given the apportionment, and a consequent offset, Mr. Hurdle is
entitled to 60% of his costs.

“The
Honourable Mr. Justice Crawford”